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Mittan v. O''Rourke

Decided: May 21, 1935.

FRED MITTAN, PETITIONER-DEFENDANT,
v.
JACK O'ROURKE AND HAROLD WILSON, RESPONDENTS; HAROLD S. WILSON, PROSECUTOR



On certiorari.

For the prosecutor, Cox & Walburg (Arthur F. Mead, on the brief).

For the defendant, Herman W. Kurtz.

Before Brogan, Chief Justice, and Justices Parker and Bodine.

Brogan

The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. This certiorari brings up for review a judgment awarding compensation to the petitioner.

The petitioner was in the employ of Jack O'Rourke, doing mason work, as a result of which he sustained eye injuries which arose out of and in the course of his employment. He filed a petition against O'Rourke praying for compensation under the statute. The petition was not contested and an award was made which the petitioner was unable to have satisfied, either in whole or in part, the said O'Rourke not having any workmen's compensation insurance. Thereafter, an amended petition was filed and served upon the respondent

Harold S. Wilson on the theory that he was answerable by virtue of the provisions of an "Act concerning the compulsory insurance of compensation payments, &c." Pamph. L. 1917, ch. 178, P5, art. 1, p. 524, as amended by Pamph. L. 1921, ch. 272, p. 803, and as further amended in Pamph. L. 1924, ch. 128, p. 245 (Cum. Supp. Comp. Stat. 1911-1924, p. 3898, ยง **236-72). The last amendment is the pertinent one, in that, inter alia, it contains the following: "Any contractor placing work with a subcontractor, shall, in the event of the subcontractor's failing to carry workmen's compensation insurance as required by this act, become liable for any compensation which may be due an employe or the dependents of a deceased employe of said subcontractor."

The deputy commissioner determined that the said Wilson was a "contractor" within the meaning of the amendments to the statute (1924), supra, and made an award to the petitioner against the said Wilson.

The facts in the case, so far as the legal question before us is concerned, have been stipulated and the pertinent facts are these: That Wilson owned land upon which he was having constructed a house for his own use and occupancy; that he is not a builder in the technical sense, never having built any other house and not intending to build any other; that in fact he is employed in a clerical capacity in a high school in Newark, New Jersey; that he let out, by written contract, the mason work to O'Rourke, the plumbing, carpenter and electrical work to other persons by separate contract; that the said O'Rourke failed to carry workmen's compensation insurance as required by law; that Wilson was carrying a Standard Workmen's Compensation Employers' Liability Policy of Insurance covering the premises in question.

The issue before us then, is whether or not Wilson was a contractor within the meaning of ...


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